TEXAS REDISTRICTING & ELECTION LAW
Four pre-filed amendments have come in on SB 4 - the bill on the congressional map.
One of the amendments (here) by House redistricting committee chair, State Rep. Drew Darby (R-San Angelo), would add detailed census tract descriptions of districts and delete controversial legislative findings that the map complied with the Voting Rights Act and Constitution.*
Senate Democrats had objected to inclusion of the findings but were unsuccessful in getting them removed either in committee or on the floor.
In addition to the Darby amendment, State Reps. Rafael Anchía (D-Dallas), Yvonne Davis (D-Dallas), and Eddie Rodriguez (D-Austin) pre-filed amendments tied to proposed alternate maps:
Plan C238 - Anchía alternate (Backgrounder here)
Plan C245 - Rodriguez alternate (Backgrounder here)
Plan C251 - Davis alternate (Backgrounder here)
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* Darby also filed a similar amendment to both the state house and state senate bills.
For tomorrow’s floor debate on redistricting bills, MALC chair, State Rep. Trey Martinez Fischer, has filed a second statewide proposal for the state house map, Plan H329.
On Monday, the House redistricting committee voted down Martinez Fischer’s earlier proposal for the state house, Plan H321, in a party line vote - though the map seemed to draw interest from at least a few of the Republican members of the committee.
Martinez Fischer also has filed a stand alone proposal for Harris County Plan H332, which differs somewhat from Plan H329.
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UPDATE:
This evening Martinez Fischer also filed stand alone proposals for Bell County, Fort Bend County & West Texas.
Plan H333 - Martinez Fischer (Bell Co. amendment)
A few more state house map proposals have been filed by members ahead of tomorrow’s vote in the House on redistricting bills.
All of the new proposals affect only a few districts rather than make statewide changes.
Here they are:
Plan H323 - Miles (affecting HD 146 and HD 147)
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A few more partial map fixes:
Plan H324 - Anchía (affecting HD 103 and HD 115)
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A few more:
Plan H333 - Martinez Fischer (Bell Co. amendment)
The vote on the redistricting bills has been added formally to the Texas House’s calendar for Thursday morning.
The House will be voting on the Senate version of the three map bills (SB 2, SB 3, and SB 4).
Assuming there are no amendments - and no successful points of order - the bills then could go straight to Gov. Perry’s desk for signature.
Thursday morning could be big in another way as well. An hour before the House meets, the Supreme Court will be releasing more opinions. Those could include a decision in Shelby Co.
There were a couple of big bills that got Gov. Perry’s veto, but that was the exception.
Here’s an updated chart of what made it through the process and what didn’t.
A few of the bills will need to be submitted for preclearance (assuming section 5 is still with us), but it’s hard to see those running into any significant objection.
Several people have asked whether the Supreme Court’s 7-2 ruling yesterday striking down an Arizona law requiring proof of citizenship when registering to vote has any impact on the Texas voter ID case.
In short, no.
But it could have other implications.
The Arizona case was about whether a federal law - the National Voter Registration Act - superseded (preempted) a state law on the requirements for voter registration (specifically a proof of citizenship requirement).
That’s different from the situation with voter ID since there is no federal law governing whether you have to show identification in order to vote.
Instead, the dispute in the Texas voter ID case is about whether the law has a discriminatory effect under section 5 of the Voting Rights Act - and whether it is barred by other constitutional considerations.
That said, the NVRA does feature in a case about Texas’ voter registration laws currently on appeal at the Fifth Circuit.
That case - Voting for America, Inc. v. Steen - involves a challenge to a number of Texas’ voter registration procedures, including a requirement that deputy voter registrars return completed applications in person.
The trial court granted a preliminary injunction based in part on findings a conflict with provisions of the NVRA (more here), but the State of Texas obtained an emergency stay blocking the injunction. The case was argued on appeal in December and now is awaiting decision by the court.
The Constitution’s Elections Clause* - on which the NVRA is case is based and which Justice’s Scalia’s opinion yesterday interpreted broadly - also forms the basis of the Voter Empowerment Act (S 123) being proposed at the federal level by Congressman John Lewis and others.
That proposed bill - which doesn’t seem to be going anywhere at the moment - would do things like standardize early voting in the United States and require states to offer online voter registration.
On the other hand, the Elections Clause would allow the federal government, if it chooses, to do things like impose a national voter ID law or proof of citizenship laws. Senator Ted Cruz has already said he will offer one such proposal as an amendment to immigration legislation:
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* The Elections Clause is contained in Article I, section 4, clause 1 of the Constitution and says:
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
In a hearing that took under 10 minutes, the House redistricting committee voted out the three companion bills to the House bills it considered yesterday.
That 10 minutes included committee chair, State Rep. Drew Darby (R-San Angelo), explaining his position on why the failure to pass HB 3 yesterday was not fatal to SB 3 (the bill hadn’t been defeated but merely failed to pass) and State Rep. Senfronia Thompson (D-Houston) explaining why she thought Darby was wrong under Rule 4.13 - and raising a point of order.
After Darby overruled Thompson’s point of order, the vote on the bills took under 3 minutes.
Although some had speculated about possible amendments to the state house map, the committee didn’t consider any amendments today.
The full House returns Thursday, June 20, at 10:00 a.m. when it is expected to vote on redistricting bills, including several possible amendments.
The House redistricting committee voted bills out of committee this afternoon, but not without a procedural fumble and a little bit of drama.
The non-controversial state senate bill - HB 2 - was first up and straightforward: voted out of committee unanimously 17-0.
But it then got more interesting when things turned to the state house map bill - HB 3.
State Rep. Yvonne Davis (D-Dallas) offered Plan H312 as an amendment and much of the subsequent discussion focused on HD 54 in Bell County (where Killeen is currently split), HB 26 in Fort Bend County, and on the Dallas County map.
In an extended exchange between State Rep. Jason Villalba (R-Dallas) and Jeff Archer of the Texas Legislative Council, Villalba asked Archer whether any of the changes made by Davis’ amendment were required by law.
Archer answered the question slightly differently, telling Villalba that while he could not say how a court would rule, the Davis map made changes in parts of the map where there “was serious legal doubt.”
Archer said while the state might very well win in court on HD 54 in its current configuration, the case was not clearcut and that, if the Legislature’s goal was to minimize the risk of adverse litigation, the Davis map addressed most of the key areas of contention.
On the Dallas County map, much of the discussion by Davis focused on restoring a Mesquite-anchored district, shown as HD 113 in the Davis map:
While there weren’t many questions about the eastern side of Dallas County, some Republican members, however, expressed concerns about the pairings of State Rep. Dan Branch (R-Dallas) and State Rep. Kenneth Sheets (R-Dallas) - though ironically Branch at almost the exact same time seemed to be concentrating most of his energy on plans to run for attorney general:
In the end, however, the vote on the Davis map failed along predictable party lines 6-11.
State Rep. Trey Martinez Fischer’s newly filed Plan H321 also drew a lot of attention.
Martinez Fischer described the plan as a ‘least change’ plan, noting that the map did not pair any incumbents and affected the boundaries of only 20 of 150 state house seats.
Martinez Fischer said that it was not his favorite plan, but was a compromise designed to make sure the Legislature rather than judges drew the final maps.
The plan seemed to interest a number of Republican members, including Villalba, who asked Martinez Fischer whether the plan addressed all his issues in the litigation.
While Martinez Fischer said he could not speak for all of the parties in the San Antonio case, he hinted that adopting the plan would go a very long way.
Questioning on the plan focused mostly on proposals to create a new Hispanic opportunity district in West Texas, with State Rep. Travis Clardy (R-Nacogdoches) expressing concerns that rural counties were being split.
Martinez Fischer responded that the resulting districts still were fairly compact by West Texas standards, but recognized what he said was a tension between the county-line rule and the Voting Rights Act. (Clardy’s concerns also drew a quip from State Rep. Richard Peña Raymond (D-Laredo) who said he knew Clardy would be proposing amendments to keep Travis County from being fractured on the congressional map.)
Although Martinez Fischer suggested giving members more time to consider the map, committee chair, State Rep. Drew Darby (R-San Angelo) said that would not be possible, and in the vote that followed the Martinez Fischer map also failed 6-11 (though at least four members said they were voting ‘no’ because they needed more time).
Which brings us to the vote on the unamended HB 3 itself: The bill passed 9-5 but was just shy of 10 votes needed under House rules to report the bill out of committee - since several members were out of the room at the time Darby called the vote.
That led to a short recess, hallway huddling, and a decision by Darby to hold a vote on HB 1 - an omnibus bill on the state house, state senate, and congressional maps.
That, in turn, drew complaints from State Rep. Senfronia Thompson (D-Houston) and State Rep. Yvonne Davis (D-Dallas) who said that House rules barred consideration of a bill that had the same subject matter as a bill that had failed to pass.
But in the end, Darby called a vote on HB 1, and it too passed on party lines 11-6.
The committee also voted out HB 4 - the bill on the congressional map - by a party line vote 11-6.
The committee returns Tuesday at 9 a.m. for a previously unscheduled hearing to consider companion Senate bills to the bills it just voted out of committee - or in the case of HB 3 failed to do.
We’ll find out tomorrow whether the 12-hour delay brings any movement on the maps or just more party line votes designed to fix procedural fumbles and possible points of order.
The full House returns Thursday when it is expected to take up redistricting bills.
MALC chair, State Rep. Trey Martinez Fischer, has filed two more statewide proposals - one a statewide proposal and one a proposal to address more limited of state house districts in South Texas.
A number of Supreme Court decisions today, but still no decision in Shelby Co.
More decisions on Thursday at 9 a.m. central.
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P.S. No decisions either in the affirmative action or gay marriage cases.
In a 7-2 opinion by Justice Scalia, the Supreme Court ruled this morning that Arizona’s law requiring that voters provide proof of citizenship when registering to vote was preempted by the National Voter Registration Act.
Here’s the opinion.
Justice Thomas and Justice Alito filed dissenting opinions.
Ahead of what could be a busy week, a round up of some of the press coverage about Texas redistricting:
Patricia Kilday Hart at the Houston Chronicle reports that Texas Attorney General Greg Abbott’s redistricting advice has lawmakers nervous.
Shira Toeplitz and Abby Livingston at Roll Call write that Texas members of Congress are standing by to see whether there will be a map do over post-Shelby Co.
Enrique Rangel covers Friday’s vote on redistricting bills in the Texas Senate and says that redistricting can be a thankless task.
Sara Inés Calderón writes at Politic365 that Texas Latinos have the most to lose from the current special session on redistricting.
The Texas Tribune’s weekly Tribcast covers redistricting - and Texas Monthly’s upcoming list of the best and worst legislators of the 83rd Legislature.
So how do Texas growth rates for each of the major ethnic groups look when compared to rates for the United States?
The short answer: Similar but more robust across the board.
First the U.S.:
Now the growth rates for Texas over the same period:
The Anglo growth rate was virtually nil for the last decade in the United States.
In Texas, by contrast, the Anglo growth rate (if not exactly out of control) has been steadily inching upward toward the 1% mark, especially since 2008 - a reflection of Texas’ stronger economy and greater migration from other states.
The state’s African-American growth rate much more closely mirrors the national growth rate for African-Americans. However, it too has begun growing more rapidly post-Great Recession (with a major additional spike for Hurricane Katrina).
As in the United States as a whole, Asians are the state’s fastest growing ethnic group, with Hispanics coming in second.
Both Asian and Hispanic growth rates have seen a fall off as immigration rates fell - though the Asian growth in Texas remains notably stronger than in the nation as a whole.
Hispanic growth rates remain more than double Anglo growth rates, although African-Americans slightly outpaced Hispanics in the year ending July 1, 2012.
As redistricting heads into a big if maybe undramatic week, answers to a few questions people have asked - or at least some thoughts.
Were people actually expecting a shorter special session?
Shorter is a relative word in a 30-day special session, but the answer is yes - a lot of members were.
Especially on the Republican side, the expectation seems to have been that the interim maps would be easy to push through and, more importantly, low risk.
And the Capitol scuttle is that Texas Attorney General Greg Abbott was a major proponent of that view.
But those plans quickly fell by the way side for several reasons, including comments by the San Antonio court questioning both whether the interim maps addressed all issues and the process being used during the special session to adopt the maps.
That seems to have been the genesis of the statewide field hearings that have taken place.
That said, while Republicans have reworked their strategy, the new strategy seems like something of a halfway house: We’ll have a series of public hearings but we won’t actually make changes. However, as MALC’s lawyer Jose Garza said at committee hearings in San Antonio, “the proof of a pudding is in the eating.”
Is the state gambling that section 5 goes away?
That no doubt is part of the dynamic. But while it is correct that things change if section 5 no longer is applicable, they actually don’t change that much.
Claims under section 2 and the Constitution still would have to be decided by the San Antonio court. Those include not only claims about the need to create additional section 2 districts but also claims based on allegations of intentional discrimination. They also would include a claim that crossover districts, like the old CD-25, are protected under the Fourteenth and Fifteenth Amendments.
In other words, the landscape of disputes would look very similar.
And in one respect, by adopting the interim maps, the Legislature might ironically actually be enhancing the claims of African-American and Hispanic groups. Right now, the D.C. court’s preclearance decision is a non-final order on appeal to the Supreme Court. The Supreme Court could overturn the rulings. But if the Legislature enacts new maps, the state’s appeal would be moot, and the D.C. court’s order would become final and entitled to preclusive effect.
To be sure, the state would have arguments about the extent of that preclusive effect - or whether any would even attach if section 5 is struck down (preclusion is a complicated subject on which law review articles and books are written). But those issues would need to be litigated with the Supreme Court ultimately likely deciding the issue. And if the plaintiffs prevail, the state would be barred from re-litigating the issues already argued and decided by the D.C. court - including findings of intentional discrimination.
Doesn’t just ramming these maps through show Democrats that they should focusing on getting X elected as governor?
That’s actually a very perceptive observation. I’ve written elsewhere that the focus of Democrats seems to be increasingly on a statewide play - whether in the short or medium term. Drawing maps where there are no real opportunities for Democrats in legislative and congressional races may just encourage a statewide play sooner than latter. If donor money isn’t being spent on swing district races, it will go somewhere else.
That said, it is by no means certain that the current interim maps help Republicans by the end of the decade, especially in places like Dallas County. The 2001 state house map in Dallas County maximized Republican gains, but it did so by leaving Republican seats with large numbers of non-Anglo voters. By the end of the decade with rapid demographic change, a lot of those seats were highly competitive and several had been won by Anglo Democrats. You could make the argument that the 2011 state house map makes the same overreach mistake.
What would you say to members if you were Greg Abbott?
This one was kind of interesting to think about, but probably something like this:
Look, I’m your lawyer. Whatever you give me to defend, I’ll defend. And I’ll get to shake my fist at the federal government while I do so, so trust me it doesn’t bother me politically.
But let’s be honest, you guys handed me some real duds the last time. A congressional map that tried to give all four of the state’s new congressional seats to Republicans is just one example.
And from a legal state point, I’m telling you we can’t afford to get slammed again with findings of discriminatory intent.
Process is important and you guys need to take the map process seriously. If you refuse to make even small changes, you aren’t making it easier for me.
At least this time, we aren’t taking changes from our side, so there won’t be moving of country clubs and private schools around to please Republican members of Congress. But I’m telling you we would look a whole lot more reasonable to the courts if we could find some way to accommodate at least some of the changes in the maps that the minority members want.
And again, I have to stress to you guys - the maps you drew last time got us hit with findings of discriminatory intent.. That hasn’t happened since 1971 - and this time it was from a panel with two judges appointed by George W. Bush. Having it happen once is bad enough. If it happens again, it’s going to hurt us legally, and it’s going to hurt us politically.
Which gets me to the risk calculus. Trey Martinez Fischer will tell you that the court is certain to make a bunch more changes. I don’t buy that. But as the state’s lawyer, I also would be misleading you if I said there was no risk.
You take a look at the state house map, in particular, and it’s not hard to see that the court just didn’t get around to addressing every part of the state. Given that the 2012 election had started and everyone from Gov. Perry to election administrators was panicking, that’s not surprising.
And though it’s been my public line that the interim maps fix all defects, what you need to understand is that the Supreme Court limited the scope of what the court in San Antonio could do. It basically told the San Antonio court that it could make a change only if the plaintiffs had shown that they would have been entitled to a preliminary injunction. Well, that’s a high standard and those of you who are lawyers know there are many times you don’t get an injunction but you win at trial.
But let me leave you with this. Those of you who went to law school also will remember Judge Learned Hand’s B<PL formula. I think it’s helpful for how you ought to think about the situation here.
What the formula basically says is that where the cost of taking precautions (B) is less than probability of the harm happening (P) multiplied by the magnitude of the harm (L), you ought to take the precaution.
Here we all might disagree about the probability of additional changes (P) but we all can agree that a pretty big harm (L) would be having three judges drawing maps who know nothing about most parts of the state - including the parts of your district where your best voters live.
Now, I haven’t been to any of the redistricting committee hearings, but it is my understanding that Jose Garza - MALC’s lawyer - talked about 5-7 state house seats and 1-2 congressional seats.
I think you all need to look around and ask whether with all the retirements and people running for other offices, you have some flexibility in places like Dallas and around Houston. I’m not making any promises but if there some help you need getting through caucus politics - you need to reach out to me, Gov. Perry, Lt Gov. Dewhurst.
Again, whatever you give me, I’ll defend in the courts. But giving it the ol’college try would be in your best interest. In fact, it’s even more in your best interest than mine.
What’s on tap for the coming week (and the first part of the week after that):
Monday, June 17.
At 9:00 a.m. central time, the Supreme Court issues more opinions - and the watch for Shelby Co. resumes.
At 10:00 a.m., the Texas House reconvenes but with no redistricting bills out of committee yet, there is nothing for it to do on the redistricting front.
At 1:00 p.m., the House redistricting committee meets in Austin to take up pending business. The expectation is that the committee will consider amendments and vote redistricting bills out of committee at that time. The committee will not hear public testimony except from specifically invited persons.
Wednesday, June 19.
A possible floor vote on redistricting bills in the House.
Thursday, June 20.
At 9:00 a.m. central time, the Supreme Court issues more opinions.
Today also is being predicted as the most likely day for floor votes in the House on restricting bills.
Monday, June 24.
The last scheduled public session for the Supreme Court, though it could add additional dates (you get to do that when you have the word ‘Supreme’ in your name). But if the cases haven’t been decided yet, this could be the mother of all announcement days with opinions in Shelby Co. and on the National Voter Registration Act, affirmative action, and gay marriage.
P.S. I’m guessing Shelby Co. comes down Thursday, and Trey Trainor owes me a scotch if I’m right (or, more accurately, if he’s wrong):
